The Vacancy

Leaving the Court | Who's Likely to Leave?

The Justice Thurgood Marshall Press Conference, July 7, 1991

Reporter: Why did you resign?
Marshall: I didn't resign; I retired!
Thurgood Marshall

Leaving the Court

Retirement, Resignation or Death

There are essentially four ways for justices to leave the Court: retirement, resignation, removal through the impeachment process, or death.

As Justice Marshall vigorously pointed out to a reporter, retirement and resignation are not the same. Before 1869, there were no retirement benefits, hence no retirement. Resignation or death were the two ways to leave the Court.

A retirement provision in 1869 permitted justices 70 years of age or over and with at least 10 years on the Court to leave the Court at their current pay, although that amount was susceptible to change, including a decrease. In the aftermath of the failed 1937 Court packing plan, a more attractive option permitted these "70/10" retiring justices to remain "on call" as Article 3 judges who, according to the Constitution, may not have their salaries diminished "during their continuance in office." Effectively, this permitted retirement at full pay.

Methods of Departure

Resignations now occur when the sitting justice fails to meet the retirement criteria or chooses to forego the Article 3 retirement privileges. Below are data on how justices have left the Court.

Note: The total number of departures (102) is one more than the total number of people who have left the Court (101) because Charles Evans Hughes served at two different times, resigning in 1916 to run for the presidency and then returning to the Court in 1930 and retiring in 1941.

Note 2: These numbers do not reflect the interim appointment and service of John Rutledge during his second time on the Court. Having resigned in 1791 from his initial appointment to the Court, Rutledge subsequently was given a recess appointment by George Washington and actually presided as Chief Justice in 1795 only to be rejected by the Senate when it returned to session and Rutledge's name was formally submitted for confirmation.

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Who's Likely to Leave - and When?

Long Overdue

On average, a vacancy has occurred every two years, at least since 1937 and the passage of an enhanced retirement option for the justices. In that sense, by 2005 we were long overdue -- the previous vacancy having occurred in 1994, making it the longest period of time in which no vacancy had occurred since the stretch between 1811 when Justice Chase died and 1823 with the vacancy created by the death of Justice Livingston.

In the 20th century, the second longest stretch without a vacancy occurred over the six year period of 1975 to 1981, completely encompassing the administration of President Carter, the only president in the 20th century to serve a full term in office without an opportunity to make an appointment to the Court. That had been preceded by a four year period of no vacancies and was followed by another five year period. Only two presidents served uring the record length of time between the vacancies of 1811 and 1823 (Madison and Monroe) and both were able to name justices to the Court.

Throughout the first term of President George W. Bush, there was considerable speculation that one or more justices might retire, but only now as he now enters his second term have those vacancies occurred.

O'Connor, Rehnquist, and Stevens

So, who's likely to leave the Court during the Bush Administration?

Justice Sandra Day O'Connor was the first to step up. Appointed by President Reagan in 1981 as the first woman justice, she probably cares less than either Rehnquist or Stevens about who might name her replacement. Apparently the victor in her own battle with cancer, at age 75 she has decided the time has come to leave the Court. Her departure is considered key to advocacy groups of both the left and the right because of her well-deserved reputation as a swing vote that could tip 5-4 decisions in either direction. No doubt, the president felt some pressure to appoint a woman to the Court to replace O'Connor, but with the expectation he would have additional vacancies to fill, he could bypass appointing a woman or a person of colorto fill this particular vacancy. The sudden switch of Judge Roberts to the Rehnquist vacancy now increases the pressure on the president to appoint someone other than an anglo male to this new O'Connor vacancy.

Chief Justice William Hubbs Rehnquist (born October 1, 1924) was the most senior member of the Court, having been appointed by President Nixon in 1971, at the relatively young age of 47. Battling thyroid cancer, the Chief Justice had been on track to eclipse William O. Douglas as the longest serving justice in American history (on August 4, 2008). That was not to be, and the passing of the Chief Justice on September 4, 2005, created a second vacancy for President Bush to fill, which he immediately did by moving the Roberts nomination to the Chief Justice vacancy.

Justice John Paul Stevens is the oldest justice on the current Court. He was born on April 20, 1920. Although appointed by the Republican President Ford, Stevens might feel more comfortable if his successor were appointed by a Democratic president, but such factors may not weigh heavily on his mind. As one of the more liberal members of the Court, his departure would be an opportunity for President Bush to secure a more certain conservative majority.

Any others?

In terms of age, Justice Ruth Ginsburg (born March 15, 1933) isn't that much younger than O'Connor. Ginsburg was already 60 years of age when President Clinton appointed her to the Court in 1993. She too won out over cancer. Her more liberal position on the Court would provide President Bush with an opportunity to move the Court in a more conservative direction.

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Last updated: September 6, 2005.